Jailhouse Lawyer's Handbook - Sentencing and Justice Reform ...

Center’s litigation guide for prisoners, Protecting Your
Health & Safety, has a very helpful chapter on
developing discovery strategies. You will find
information on ordering that book in Appendix E.
In most cases, the first step in the discovery process is
called a “Rule 26(f) Meeting.” The Federal Rules of
Civil Procedure require that the plaintiffs and the
defendants get together to talk about the case, the
possibility of settlement (when you come to an
agreement with the defendants that ends your case
before trial), arrange for some exchange of information,
and create a discovery plan or schedule. You need to
read your district court’s rules, however, because many
courts do not require this meeting for pro se inmates. If
you don’t need to have a Rule 26(f) meeting, you can
start right in on discovery requests.
1. Discovery Tools
There are four main discovery tools: depositions,
interrogatories, production, and inspection. (You can
also request an examination by an outside doctor, under
Rule 35). This Handbook gives you only a brief
introduction to these techniques. The details of how
they work are in the Federal Rules of Civil Procedure.
A “deposition” is a very valuable discovery tool. You
meet with a defendant or a potential witness, that
person’s lawyer, and maybe a stenographer. You or
your lawyer ask questions which the “deponent” (the
defendant or witness you are deposing) answers under
oath. Because the witness is under oath, he or she can
be prosecuted for perjury if he or she lies. The
questions and answers are tape-recorded or taken down
by the stenographer. A deposition is very much like
testimony at a trial. In fact, you can use what was said
at a deposition in a trial if the person who gave the
deposition either (1) is a party (plaintiff or defendant),
(2) says something at the trial which contradicts the
deposition, or (3) can’t testify at the trial. Despite these
benefits, you should BEWARE: a deposition is very
hard to arrange from in prison, because it can be
expensive, and it involves a lot of people.
In the United States District Court
For the _____________________
-------------------------------------------x
Name of first plaintiff :
in the case, et al.,
Plaintiffs,
: PLAINITFF’S
: FIRST SET OF
: INTERROGAv.
: TORIES TO
: DEFENDANTS
Names of first defendant :
in the case, et al.,
: Civil Action No. __
Defendants :
-------------------------------------------x
In accordance with Rule 33 of the Federal Rules of Civil
Procedure, Plaintiff requests that Defendant [Defendant’s
name] answer the following interrogatories under oath, and
that the answers be signed by the person making them and be
served on plaintiffs within 30 days of service of these
interrogatories.
If you cannot answer the following interrogatories in full,
after exercising due diligence to secure the information to do
so, so state and answer to the extent possible, specifying your
inability to answer the remainder and stating whatever
information or knowledge you have concerning the
unanswered portions.
These interrogatories shall be deemed continuing, so as to
require supplemental answers as new and different
information materializes.
[List your questions here…and be creative and as detailed as
possible. ]
If you have a guard brutality case, you may want to ask
questions about how long the specific guard has
worked at the prison, where he is assigned, what his
duties are, what he remembers of the incident, what he
wrote about the incident in any reports, whether he has
ever been disciplined, etc.
It is also a good idea to take the opportunity to try to
find out who else might be a helpful witness. You
could ask the defendant to:
“Interrogatories” are written questions which must be
answered in writing under oath. Under Fed.R.Civ.P.
33, you can send up to 25 questions to each of the other
parties to the suit. A person who is just a witness, and
not a party, cannot be made to answer interrogatories,
though he or she can voluntarily answer questions in an
affidavit. To get an affidavit from someone in another
prison, you may need a court order. You can use the
following example to write interrogatories of your own.
State the name and address or otherwise identify
and locate any person who, to you or your
attorney’s knowledge, claims to know of facts
relevant to the conduct described in these
interrogatories.
JAILHOUSE LAWYERS HANDBOOK – CHAPTER FOUR
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